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The Real Winners in Oneida-Herkimer

By John H. Skinner

Congratulations to the professional team at the Oneida-Herkimer Solid Waste Management Authority, which successfully defended the system it put in place to serve the needs of its citizens. The authority has demonstrated that a well-planned-and-managed public-sector solid waste management program can provide a wide range of recycling, composting, and waste management services that can withstand legal challenges at the highest level.

The 6–3 decision by the US Supreme Court in the Oneida-Herkimer case upheld the counties’ flow control ordinances that required private haulers to deliver collected waste to the authority’s sites. The decision couldn’t have been clearer or stronger in its support of local government solid waste management programs. Writing for the majority, Chief Justice John Roberts stated that waste disposal has been “a traditional government activity for years, and laws that favor the government in such areas—but treat every private business, whether in-state or out-of-state, exactly the same—do not discriminate against interstate commerce.”

I believe that one of the primary beneficiaries of this decision will be local governments that want to put in place recycling and energy recovery programs that reduce dependence on landfill disposal. Local governments will now be able to legally direct solid wastes collected within their jurisdictions to publicly owned materials recovery facilities (MRFs), waste-to-energy facilities, composting operations, household-hazardous-waste centers, and transfer stations. Waste haulers will not be able to bypass these facilities and simply take collected wastes to landfills of their own choosing outside of the system established by the local authorities.

In the Oneida-Herkimer case, the court concluded that the ordinances that directed wastes to local government-owned facilities provided significant public benefits that far outweighed any incidental burdens they may have had on interstate commerce. Recycling and proper disposal were foremost among the public benefits identified. As described in the decision, these ordinances created incentives for recycling and proper disposal, increased the ability to enforce recycling laws, and allowed local governments to provide recycling, hazardous-waste management, and disposal practices that conferred significant health and environmental benefits upon their citizens. I think these conclusions by the US Supreme Court are remarkable, and this decision sets the stage for significant advancements in solid waste management practices nationwide.

A fully integrated, publicly owned solid waste management system providing many different forms of recycling and energy recovery for its citizens has many benefits as compared to a system dependent on landfill alone. The public clearly understands and values the long-term environmental and public health benefits of recycling and energy recovery, and citizens have continually demonstrated their willingness to support such programs. The Oneida-Herkimer decision gives local governments the ability to provide the public with such programs and to prevent these programs from being undermined by wastes that are diverted outside of the system.

The Supreme Court decision provides a valuable new tool for local governments to manage their solid wastes and fund their recycling and landfill diversion programs. Local governments across the country are studying the new options available to them based on the court ruling. Some may conclude that they do not need flow control, but I believe that more and more communities will begin to use it.

One of the issues that will be closely monitored is the effect that flow-control ordinances have on costs and prices. An integrated solid waste management program incorporating recycling, recovery, and special waste processing often has tipping fees higher than stand-alone landfill. This is because a short-term cost focus does not recognize the longer-term social benefits of managing wastes in better and more environmentally preferable ways. Local governments have proved themselves to be perfectly capable of providing such services to their citizens in a cost-effective manner and have an obligation to do so as they implement programs under the new authorities.

One option that they may find particularly useful is to direct collected solid wastes to publicly owned transfer stations or MRFs. There they could separate wastes for recycling, composting, household-hazardous-waste treatment, and energy recovery and charge a tipping fee necessary to support these recycling and recovery programs. After separating materials for recycling and recovery, local governments could then ship the remaining residues by truck, rail, or barge to landfills anywhere in the country for final disposal. This could open up a wide range of landfill options for the non-recyclable residues and would help ensure that the merchant landfill market remains competitive.

One of the frequently asked questions about the Oneida-Herkimer decision is whether the decision applies to facilities that are publicly owned but privately operated. It seems consistent with the spirit of the opinion for local governments and waste agencies to have a choice in how they manage the components of their solid waste systems: government employees versus private contractor.

To the extent a local government or waste authority complies with state and local procurement laws, which offer a fair opportunity for all potential service providers, they presumably will have treated all businesses the same. I do believe that it is important for the private operation option to be preserved as both the public sector and private sector could benefit.

Several years ago the SWANA International Board of Directors established the following guiding principle for the association: “Local government is responsible for management of municipal solid waste but not necessarily the ownership and/or operation of municipal solid waste management systems.”

This principle is based on the fact that solid waste policy is public policy, and local government is vested with the responsibility to establish solid waste management programs that protect the public health, safety, and welfare of its citizens. However, within that policy framework there are many different ownership and operation arrangements that are possible and it is important that local governments retain the flexibility to be able to select what is best based on their local circumstances.

While the Oneida-Herkimer decision clearly reinforces local government’s role, hopefully it will not preclude the public and private sector from working together in providing the necessary services to meet the needs of our citizens.

John H. Skinner, Ph.D., is chief executive officer of SWANA.

MSW - September/October 2007